Wednesday, June 30, 2010

William O. Douglas in Drag

Elena Kagan got through the first day of questioning at her Senate confirmation hearing without saying much of anything. She even managed to relieve the tedium by cracking a couple of jokes. Measured against post-Bork standards, that’s an admirable performance—maybe not up to the level of virtuosity associated with John Roberts, but much better so far, by my lights, than Sonia Sotomayor’s performance.

The only consolation for conservatives was that a question from Tom Coburn has generated a viral video that's already riling up the Tea Partiers and conservative bloggers. There’s no denying that he’s a gifted rhetorician; in his folksy way Coburn deftly insinuated that liberal judicial philosophy is a recipe for totalitarianism. Yet, when you look more closely at the legal point he was trying to make, he's undermining his own judicial conservatism by suggesting that anything as morally outrageous as the government’s forcing you to eat your vegetables must be unconstitutional.

The moral outrage Coburn is asking us to contemplate is the prospect of a government exerting too much day-to-day control over how people live their lives. If that’s objectionable, it’s just as objectionable when a state government does it as when the federal government does it. Coburn, however, seems to think that he’s making an argument against the lenient interpretations of the commerce clause favored by liberal judges. He conveniently forgets that the commerce clause is about federalism, not limited government; it imposes limits on what the federal government may do without saying anything about what government as such, and state governments in particular, may do.

The only textual basis for arguing that the Constitution confers a right on citizens not to have a state government force them to eat their vegetables is the due process clause (or, if you follow Justice Thomas, perhaps the privileges and immunities clause) of the Fourteenth Amendment. I suppose that, if you’re determined enough, you can “discover” an unenumerated right-not-to-eat-your-vegetables in the penumbras cast by various constitutional provisions and incorporated by the Fourteenth amendment for the use of individuals against state governments. But you’ll be employing substantially the same method that liberal judges used to “discover” a constitutional right to privacy that encompasses contraception, abortion and consensual sodomy.

Coburn thinks he's channeling James Madison, when he's really playing William O. Douglas in drag.